State v. Heath

• Decision Date: 17 April 1998
• Docket Number: No. 77538,77538
• Citation: 264 Kan. 557,957 P.2d 449
• Parties: STATE of Kansas, Appellee, v. Glenn A. HEATH, Jr., Appellant.
• Court: Kansas Supreme Court

Page 449

957 P.2d 449

264 Kan. 557

STATE of Kansas, Appellee, v. Glenn A. HEATH, Jr., Appellant.

No. 77538.

Supreme Court of Kansas.

April 17, 1998.

Syllabus by the Court

1. Where only one act forms the basis for both the abuse of a child charge and the homicide, the abuse of the child offense merges with the offense of felony murder. In these circumstances, a conviction of both offenses violates the constitutional prohibition against double jeopardy.

2. The trial court is not required to instruct on lesser included offenses where the defendant is charged with felony murder unless the evidence of the underlying felony is weak and inconclusive.

3. In order to be qualified as an expert, a witness must be skilled or experienced in the profession to which the subject relates and qualified to impart to the jury knowledge within the scope of his or her special skill and experience that is otherwise unavailable to the jury from other sources. Questions regarding the qualification of an expert are left to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.

4. Battered child syndrome is an accepted medical diagnosis and is within the area of expertise of physicians whose familiarity with numerous instances of injuries accidentally caused qualifies them to express with reasonable probability that a particular injury or group of injuries to a child is not accidental or is not consistent with the explanation offered therefor.

5. The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case, and to be admissible, expert testimony must be helpful to the jury. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible.

6. The admissibility of expert testimony lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.

7. One of the purposes of battered child syndrome evidence is to show that the child died at the hands of another rather than by accident and that the other person inflicted the injuries intentionally. Such evidence is admissible even though it does not purport to prove the identity of the person who might have inflicted the injuries.

8. An expert's opinion is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. Although an expert may give his or her opinion on an ultimate issue, the expert may only do so insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence.

9. Battered child syndrome has gained wide judicial acceptance and does not involve novel scientific evidence. Therefore, battered child syndrome evidence is admissible without a hearing under the requirements of Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

10. The admission of evidence is generally governed by its relevancy to the issue in question. Under K.S.A. 60-445, the trial court may exclude relevant evidence when its prejudicial effect outweighs its probative value.

11. An order in limine prohibits the introduction of inadmissible evidence at trial based upon the trial court's determination that the mere offer of such inadmissible evidence will tend to prejudice the jury. Where it is alleged that an order in limine has been violated, the appellate court must first determine if a violation has in fact occurred and if so determine whether the facts elicited in violation of the order substantially prejudiced the defendant.

12. No rule governing oral argument is more fundamental than that requiring counsel to confine remarks to matters in evidence. The stating of facts not in evidence is clearly improper. However, in summing up a case, a prosecutor may draw reasonable inferences from the evidence and is allowed considerable latitude in discussing the evidence.

13. In determining whether a new trial should be granted for prosecutorial misconduct during closing argument, the court considers (1) whether the misconduct was so gross and flagrant as to deny the accused a fair trial (i.e., are the objectionable statements likely to affect the jurors to the defendant's prejudice), (2) whether the remarks show prosecutorial ill will, and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors.

14. Kansas does not follow the "plain error" rule; reversible error cannot be predicated upon prosecutorial misconduct during closing argument where no contemporaneous objection has been lodged.

15. Improper remarks made by the prosecuting attorney in his or her summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same unless the remarks were so prejudicial as to be incurable by a cautionary instruction.

16. A juror may be challenged for cause when the juror's state of mind with reference to the case or any of the parties to the case is such that the court determines there is doubt that the juror can act impartially and without prejudice to the substantial rights of any party. A trial judge's ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown.

17. The failure to excuse a juror for cause does not constitute a ground for reversal unless the defendant was prejudiced thereby. Peremptory challenges are means to achieve the end of an impartial jury, and so long as the jury that ultimately sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not violate the Sixth Amendment.

18. During the examination of any witnesses or when the defendant is making a statement or testifying, the magistrate may, and on the request of the defendant or the State shall, exclude all other witnesses. The magistrate may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all witnesses are examined. K.S.A. 22-2903.

19. The sequestration of witnesses at trial is subject to the sound discretion of the trial court and in the absence of any showing of prejudice to the defendant, the trial court's decision will not be reversed on appeal.

20. K.S.A.1997 Supp. 74-7335(a) provides that the victim of a crime or the victim's family must be notified of the right to be present at any public hearing or any juvenile offender proceeding concerning the accused or the convicted person or the respondent or the juvenile offender, including preliminary hearing, trial, sentencing, sentencing modification, public comment sessions, expungement hearing, and granting of probation or parole by a judge. However, the right of the victim or victim's family to be present is subordinate to the right of the defendant to a fair trial and where the presence of the victim or victim's family would deny the defendant a fair trial, they must be excluded.

21. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant's privilege against self-incrimination. However, a law enforcement officer's obligation to administer a Miranda warning attaches only where there has been such a restriction on the suspect's freedom so as to render him or her in custody.

22. In determining whether an individual was in custody and thus subject to Miranda, the ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. It does not matter whether the interrogating officers had focused their suspicions upon the individual being questioned if those suspicions are not disclosed to the defendant. Rather, the only relevant inquiry is how a reasonable person in the suspect's position would have understood his or her situation.

23. Cumulative trial errors may be so great as to require reversal of a defendant's conviction. The test is whether under the totality of circumstances, cumulative trial errors substantially prejudiced the defendant and denied him or her a fair trial.

Mary Curtis, Assistant Appellate Defender, argued the cause and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Joan M. Hamilton, District Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief for appellee.

DAVIS, Justice:

Two-year-old Cain Baker died from internal bleeding caused by blunt trauma. Glenn A. Heath, Jr., the live-in boyfriend of Cain's mother, was charged with and convicted of first-degree felony murder and abuse of a child. He appeals, claiming that: (1) his convictions of both felony murder and the underlying felony of abuse of a child constitute double jeopardy and violate his due process rights; (2) the trial court erred in failing to instruct the jury on the lesser included offenses of involuntary manslaughter, child endangerment, and battery; (3) the trial court erred in allowing the county coroner to testify regarding battered child syndrome; (4) the trial court erred in admitting evidence of prior abuse of Cain; (5) he is entitled to a new trial based upon prosecutorial misconduct; (6) the trial court erred in failing to remove two potential jurors from the panel for cause; (7) the trial court erred in permitting Cain's mother to be present during the trial; (8) the trial court erred in failing to suppress the defendant's statements to detectives; (9) the trial court erred in imposing a departure...